DEFENDANTS' MOTION FOR PARTIAL SUMMARY ….../s/ Todd B. Adams Todd B. Adams (P36819) Counsel for...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, on its own behalf and as Case No. 05-10296-BC parens patriae for its members, Hon. Thomas L. Ludington Plaintiff, and THE UNITED STATES OF AMERICA, Plaintiff-Intervenor, v JENNIFER GRANHOLM, Governor of the State of Michigan; MIKE COX, Attorney General of the State of Michigan; ROBERT J. KLEINE, Treasurer of the State of Michigan, each in his/her official capacity; and the STATE OF MICHIGAN, Defendants. and CITY OF MT. PLEASANT and COUNTY OF ISABELLA, Defendant-Intervenors. ________________________________________/

DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Jennifer Granholm, Mike Cox, Robert J. Kleine, the State of Michigan, City of Mt.

Pleasant, and County of Isabella (Defendants) move for partial summary judgment against the

Case 1:05-cv-10296-TLL-CEB Document 223 Filed 03/05/2010 Page 1 of 32

United States and Saginaw Chippewa Indian Tribe (Tribe) pursuant to Fed. R. Civ. P. 56(c) for

the following reasons:

1. Plaintiffs seek a declaratory judgment that all of the land within the boundaries of

six townships in Isabella County, designated in the 1855 Treaty with the

Chippewa (1855 Saginaw Treaty) 1 and the 1864 Treaty with the Chippewa

Indians (1864 Treaty), are a reservation and are therefore Indian country. 2

2. Defendants maintain that only land held in trust by the United States for the

benefit of the Tribe is Indian country, because two treaties set aside land only for

the allotment of parcels to individual Saginaw Chippewa Indians. Assuming for

argument's sake only that the alleged Isabella reservation exists, it does not

contain the sold lands or the other lands disposed of prior to the land being

withdrawn for the purpose of individual Tribal members selecting allotments.

3. In 1953 and 1954, the Indian Claims Commission held that the Tribe received no

interest in any tracts of land within the six townships that were previously sold or

otherwise disposed of by the United States prior to the withdrawal of the six

townships from the public domain, including land granted to the State of

Michigan under the 1850 Swamp Lands Act under which the State of Michigan

received patents for lands designated as swamp lands by a surveyor.3 The

Commission's decisions are binding on the Tribe and the United States.

Therefore, both plaintiffs in this case are precluded by collateral estoppel from

1 Treaty with the Chippewa of 1855, 11 Stat. 633 (August 5, 1955). 2 Treaty with the Chippewa Indians of 1864, 14 Stat. 657 (October 18, 1864). 3 Saginaw Chippewa Indian Tribe v United States, Docket No. 13-H, 2 Ind. Cl. Comm. 380, 386 (1953)(attachment 1); Saginaw Chippewa Indian Tribe v United States, Docket No. 13-H, 3 Ind. Cl. Comm. 1 (1954)(attachment 2).

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relitigating the interest the Tribe received in lands disposed of before May 14,

1855, when the land was withdrawn from sale in anticipation of the 1855 Saginaw

Treaty.

4. Additionally, the clear language of the 1855 Saginaw Treaty excludes the sold

lands from the alleged reservation. Finally, if the clear language of the 1855

Saginaw Treaty does not exclude the sold lands from the alleged reservation

under the 1855 Saginaw Treaty, then evidence of the Saginaw Chippewas'

understanding of the 1855 Saginaw Treaty demonstrates that the sold and

otherwise disposed of lands are not part of the alleged Isabella reservation.

5. Finally, the Tribe also asserts a 42 U.S.C. § 1983 claim. The Tribe is not a

"person" under the claim because it asserts only sovereign rights. Therefore, the

Tribe cannot bring a 42 U.S.C. § 1983 claim.

6. Because the Tribe's interest in these lands presents no genuine issue of material

fact, Defendants respectfully request that partial summary judgment be granted

under Fed. R. Civ. P. 56 declaring that the lands sold or disposed of by the United

States are not part of the alleged Isabella reservation and dismissing the Tribe's 42

U.S.C. § 1983 count.

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Respectfully submitted, Michael A. Cox Attorney General

/s/ Todd B. Adams Todd B. Adams (P36819) Counsel for State Defendants Environment, Natural Resources,

and Agriculture Division P.O. Box 30755 Lansing, MI 48909 517/373-7540 [email protected]

Loretta S. Crum (P68297) Special Assistant Attorney General Counsel for State Defendants /s/Larry J. Burdick Larry J. Burdick (P31930) Prosecuting Attorney for Isabella County 200 N. Main St. Mt. Pleasant, MI 48858 (989) 772-0911 ext. 311 [email protected]

LYNCH, GALLAGHER, LYNCH, MARTINEAU & HACKETT, P.L.L.C. /s/ Mary Ann J. O’Neil Mary Ann J. O’Neil (P49063) Counsel for City of Mt. Pleasant 555 North Main, P.O. Box 446

Mt. Pleasant, Michigan 48804-0446 (989) 773-9961

Dated: March 5, 2010 [email protected]

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mailto:[email protected]


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PROOF OF SERVICE

On March 5, 2010, I directed my secretary, Robbin Clickner, to electronically file the following document with the Clerk of the Court, U.S. District Court, Eastern District, using the ECF system, which will send notification of such filing to all counsel of record.

DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

/s/ Todd B. Adams Todd B. Adams s:cases/2005/saginaw chips(boundary)/def motion support partial judgment.doc lf/Saginaw Chippewa(boundary)/def motion support partial judgment.


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, on its own behalf and as Case No. 05-10296-BC parens patriae for its members, Hon. Thomas L. Ludington Plaintiff, and THE UNITED STATES OF AMERICA, Plaintiff-Intervenor, v JENNIFER GRANHOLM, Governor of the State of Michigan; MIKE COX, Attorney General of the State of Michigan; ROBERT J. KLEINE, Treasurer of the State of Michigan, each in his/her official capacity; and the STATE OF MICHIGAN, Defendants. and CITY OF MT. PLEASANT and COUNTY OF ISABELLA, Defendant-Intervenors. ________________________________________/

DEFENDANTS' BRIEF IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT


CONCISE STATEMENT OF ISSUES PRESENTED

1. Summary Judgment under Federal Rule of Civil Procedure 56(c) is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." On the issue of whether the alleged Isabella reservation contains lands sold at the time of withdrawal of the land from the public domain, there is no genuine issue of material fact. Assuming for argument's sake only that there is a reservation, are the Defendants entitled to partial summary judgment as a matter of law on whether the alleged Isabella reservation contains land already sold or disposed of at the time of withdrawal of the six townships from the public domain? 2. Collateral Estoppel prevents parties from relitigating the same issues decided in another litigation. The Indian Claims Commission decided that the Saginaw Chippewa Indian Tribe had no interest in lands sold or disposed of by the United States prior to the withdrawal of the six townships from the public domain. Are the Saginaw Chippewa Indian Tribe and the United States collaterally estopped from relitigating the Indian Claims Commission's determination of the interests that the Tribe received under the 1855 and 1864 Treaties?

3. Interpretation of clear language in an American Indian Treaty controls over purported

Indian understanding. Clear language of the 1855 Saginaw Treaty excludes sold public lands from the alleged Isabella reservation. Does the alleged Isabella reservation contain sold public lands?

4. American Indian understanding controls interpretation of treaties that are unclear. The

Saginaw Chippewa understood any alleged reservation created under the 1855 Saginaw Treaty as containing only land not sold or disposed of by the United States prior to the withdrawal of the six townships from the public domain.

5. American Indian Tribes making claims about sovereignty are not considered

"persons" under 42 U.S.C. § 1983. The Saginaw Chippewa Tribe is making claims about sovereignty in its complaint under 42 U.S.C. § 1983. Is the Saginaw Chippewa Tribe a "person" under 42 U.S.C. § 1983?

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CONTROLLING OR MOST APPROPRIATE AUTHORITY FOR THE RELIEF SOUGHT

1. Standard that Defendants are entitled to partial summary judgment because

there is no genuine issue of material fact and judgment is appropriate as a matter of law: Fed. R. Civ. P. 56(c).

Celotex Corp. v Catrett 477 U.S. 317 (1986).

Anderson v Liberty Lobby, Inc., 477 U.S. 242 (1986).

Martin v Ohio Turnpike Comm'n, 968 F.2d 606 (6th Cir., 1992).

2. Standard on whether partial summary judgment should be granted to preclude the plaintiffs from relitigating the reservation status of lands disposed of by the United States before the 1855 Saginaw Treaty and lands patented to the State of Michigan under the 1850 Swamp Land Act, under the doctrine of collateral estoppel: Hammer v INS, 853 F.3d 836, 840 (6th Cir., 1999).

Oglala Sioux Tribe v Homestake Mining Co. (Oglala II), 722 F.2d 1407, 1413-1414 (8th Cir., 1984).

United States v Dann, 470 U.S. 39 (1985).

United States v Pend Oreille Public Utility District No 1, 926 F.2d 1502 (9th Cir., 1991). Western Shoshone Nat’l Council v Molini, 951 F2d 200 (9th Cir., 1991). 3. Standard on whether the clear language of the 1855 Saginaw Treaty limits the alleged Isabella reservation to "unsold public lands."

Choctaw Nation of Indians v United States, 318 U.S. 423 (1999).

DeCoteau v District County Court for Tenth Judicial Dist., 420 U.S. 425 (1975).

4. Standard on whether American Indian understanding of the 1855 Saginaw Treaty and 1864 Treaty excludes sold or disposed of lands from the alleged Isabella reservation.

Oregon Department of Fish and Wildlife v Klamath Indian Tribe, 473 U.S. 753 (1985).

5. Standard on whether the Saginaw Chippewa Indian Tribe can sue under 42 U.S.C. § 1983 is whether they are asserting any rights other than sovereign rights.

Inyo County v Paiute-Shoshone Indians, 538 U.S. 701 (2003).

Keweenaw Bay Indian Community v Rising, 569 F.3d 589 (6th Cir. 2009).

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INTRODUCTION

Plaintiffs seek a declaratory judgment that all of the land within the boundaries of six

townships in Isabella County, designated in the treaties of 1855 and 1864 between the Saginaw

Chippewa Indian Tribe of Michigan (Tribe) and the United States is Indian country under federal

law, are a reservation and are, therefore, Indian country. The two treaties set aside land only for

the allotment of parcels to individual Saginaw Chippewa Indians. Defendants further maintain

that only land held in trust by the United States for the benefit of the Tribe is Indian country.

Assuming for argument's sake only that the alleged Isabella reservation exists, it does not contain

the sold lands or the other lands disposed of prior to the land being withdrawn for the purpose of

individual Tribal members selecting allotments.

In 1953 and 1954, the Indian Claims Commission held that the Tribe received no interest

in any tracts of land within the six townships that were previously sold or otherwise disposed of

by the United States prior to the withdrawal of the six townships from the public domain,

including land granted to the State of Michigan by the 1850 Swamp Land Act under which the

State of Michigan received patents for lands designated as swamp lands by a surveyor.1 The

Commission's decisions are binding on the Tribe and the United States. Therefore, both

plaintiffs in this case are precluded by collateral estoppel from relitigating the interest the Tribe

received in lands disposed of before May 14, 1855, when the unsold lands within the six

townships were withdrawn from sale in anticipation of the 1855 Saginaw Treaty.

Additionally, the clear language of the 1855 Saginaw Treaty excludes the sold lands from

the alleged reservation. Finally, if the clear language of the 1855 Saginaw Treaty does not

1 Saginaw Chippewa Indian Tribe v United States, Docket No 13-H, 2 Ind. Cl. Comm. 380, 386 (1953)(attachment 1); Saginaw Chippewa Indian Tribe v United States, Docket No 13-H, 3 Ind. Cl. Comm. 1 (1954)(attachment 2).

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exclude the sold lands from the reservation allegedly created by the 1855 Saginaw Treaty, then

evidence of the Saginaw Chippewas' understanding of the 1855 Saginaw Treaty demonstrates

that the sold and otherwise disposed of lands are not part of the alleged Isabella reservation.

Because the Tribe's interest in these lands presents no genuine issue of material fact,

Defendants respectfully request that partial summary judgment be granted under Fed. R. Civ. P.

56 declaring that the lands sold or disposed of by the United States are not part of the alleged

Isabella reservation.

Finally, the Tribe also asserts a 42 U.S.C. § 1983 claim. The Tribe is not a "person"

under the claim because it asserts only sovereign rights. Therefore, the Tribe cannot bring a

42 U.S.C. § 1983 claim, and the claim should be dismissed.

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STATEMENT OF FACTS

Two treaties govern the facts in this case. The 1855 Treaty with the Chippewa (1855

Saginaw Treaty) provides in Article 1 that:

[t]he United States will withdraw from sale, for the benefit of said Indians, as herein provided, all the unsold public lands within the State of Michigan embraced in the following description, to wit: First. Six adjoining townships of land in the county of Isabella, to be selected by said Indians within three months from this date and notice to be given to their agent. Second. A tract of land in one body, equal in extent to two townships, on the north side of Saginaw Bay, to be selected by them, and notice given as above provided.2

The 1864 Treaty with the Chippewa Indians (1864 Treaty) provides in Article I that:

The said Indians also agree to relinquish to the United States all claim to any right they may possess to locate lands in lieu of lands sold or disposed of by the United States upon their reservation at Isabella, and also the right to purchase the unselected lands in said reservation, as provided for in the first article of said treaty.

In Article II, the 1864 Treaty provides that:

[t]he United States hereby agree to set apart for the exclusive use, ownership, and occupancy of the said Chippewas of Saginaw, Swan Creek, and Black River, all of the unsold lands within the six townships in Isabella county, reserved to said Indians by the treaty of August 2d, 1855 aforesaid . . . .3

The Tribe has filed a complaint seeking a "declaratory judgment pursuant to 28 U.S.C.

§ 2201 and § 2202 and other applicable law, declaring that the six township historic Isabella

Reservation, as established by Executive Order and Treaty in 1855 and affirmed by Treaty in

1864, exists today as an Indian reservation and is Indian country pursuant to federal law."4 The

2 Treaty with the Chippewa of 1855, 11 Stat. 633 (August 5, 1955) (emphasis in original). 3 Treaty with the Chippewa Indians of 1864, 14 Stat. 657 (October 18, 1864). 4 Saginaw Chippewa Tribe Amended Complaint, para 44, Dkt# 17.

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Tribe's claim for a declaration of Indian country is based on its claims of tribal sovereignty5 and

treaty rights.6

The Tribe and the United States were adversarial parties in litigation before the Indian

Claims Commission (Commission) in 1953 and 1954. In Docket No. 13-H, the Commission

determined the extent of the interests that the Saginaw Chippewas received under the 1855 and

1864 Saginaw Treaties and held they received no interest in lands disposed of by the United

States before the 1855 Saginaw Treaty. The Commission also held that the Indians at Saginaw

Bay received only the unsold lands at Isabella as compensation for their relinquishment of their

lands surrounding the Bay, that the United States owed the Tribe no compensation for them,7 and

that both the Tribe and the United States clearly understood the status of Swamp Land Act

lands.8 The Swamp Land Act of 1850,9 "made a grant in praesenti; in other words, the title then

passed to all lands which at that date were swamp lands, and the only matters thereafter to be

considered were those of identification."10

In its prayer for relief, the Tribe asks for an order pursuant to 42 U.S.C. § 1983

permanently enjoining the defendants from asserting criminal and civil jurisdiction or taking any

other actions against "the Tribe or Tribal members within the historic Isabella Reservation in a

manner that federal law would not allow in Indian country."11

5 Saginaw Chippewa Tribe Amended Complaint, para 43, Dkt# 17. 6 Saginaw Chippewa Tribe Amended Complaint, para 39, Dkt# 17. 7 Saginaw Chippewa Indian Tribe v United States, Docket No 13-H, 3 Ind. Cl. Comm. 3, 9 (1954)(attachment 2). 8 Saginaw Chippewa Indian Tribe v United States, Docket No 13-H, 2 Ind. Cl. Comm. 380, 402 (1953)(attachment 1). 9 Act of Congress, September 28, 1850, ch. 84, 9 Stat. 519. 10 Michigan Land & Lumber Co. v Rust, 168 U.S. 589, 591 (1897). 11 Saginaw Chippewa Tribe Amended Complaint, para 45, Dkt# 17.

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The United States intervened on November 1, 2008. In its complaint, the United States

seeks a declaratory judgment that all lands within the boundaries of the Isabella reservation are

Indian country under 25 U.S.C. § 1151(a).12

I. Summary Judgment under Federal Rule of Civil Procedure 56(c) is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." On the issue of whether the alleged Isabella reservation contains lands sold at the time of withdrawal of the unsold land from the public domain, there is no genuine issue of material fact. Defendants are entitled to partial summary judgment as a matter of law on whether the alleged Isabella reservation contains land already sold or disposed of at the time of withdrawal of the six townships from the public domain.

Plaintiffs Tribe and United States argue that the alleged Isabella Reservation contains all

the lands in six designated townships. Defendants deny that the 1855 Saginaw Treaty or the

1864 Treaty created a reservation for the Tribe,13 but, assuming for argument's sake only that

they do, the alleged reservation does not contain the sold land and other lands disposed of prior

to the time when the land was withdrawn from the public domain for the alleged reservation.

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate "if the

pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

law."14 A factual dispute will defeat summary judgment if it is "genuine"; that is, if "the

evidence is such that a reasonable jury could return a verdict for the nonmoving party."15 The

issue must also be material; that is, it must involve facts that might affect the outcome of the suit

12 United States Complaint, para 21, Dkt# 29. 13 The two treaties set aside land only for the allotment of land to individual Saginaw Chippewa Indians. 14 Celotex Corp v Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). 15 Anderson v Liberty Lobby, Inc, 477 U.S. 242, 248 (1986).

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under the governing law."16 "When determining whether there is a genuine issue of material

fact, a court must view the evidence in the light most favorable to the non-moving party."17

Once the moving party has satisfied the "initial responsibility of informing the district court of

the basis for its motion,"18 the burden falls on the party that will bear the burden of proof at trial

to "make a showing sufficient to establish the existence of an element essential to that party's

case."19 If the party that will bear the burden of proof at trial cannot establish a genuine issue of

material fact on the issue in dispute, summary judgment will be granted under Rule 56(c).

As discussed below, there is no genuine issue of material fact about whether the alleged

Isabella Reservation contains the sold lands within the six townships. Partial summary judgment

is appropriate as a matter of law.

II. Collateral estoppel prevents parties from relitigating the same issues decided in another litigation. The Indian Claims Commission decided the issue that the Tribe had no interest in the lands sold or disposed of by the United States prior to the withdrawal of the six townships from the public domain. The Tribe and the United States are collaterally estopped from relitigating the Indian Claims Commission's determination of the interests that the Tribe received under the 1855 and 1864 Treaties.

The affirmative defense of collateral estoppel applies when a party attempts to relitigate

an issue already decided in a previous action. "Under the doctrine of collateral estoppel, also

referred to as issue preclusion, 'once an issue is actually and necessarily determined by a court of

competent jurisdiction, that determination is conclusive in subsequent suits based on a different

16 Martin v Ohio Turnpike Comm'n, 968 F.2d 606, 609 (6th Cir. 1992), citing Anderson v Liberty Lobby, Inc, 477 U.S., at 248. 17 Martin, 968 F.2d, at 609, citing Anderson v Liberty Lobby, Inc, 477 U.S., at 255. 18 Celotex, 477 U.S., at 322. 19 Celotex, 477 U.S., at 323.

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cause of action involving a party to the prior litigation.'"20 The Sixth Circuit follows a four-part

test for the application of collateral estoppel:

1) the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding; 2) determination of the issue must have been necessary to the outcome of the prior proceeding; 3) the prior proceeding must have resulted in a final judgment on the merits; and 4) the party against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding.21 Collateral estoppel applies to Indian Claims Commission determinations. The

Commission's determinations collaterally estop the United States and Tribe.

A. The precise issue was raised and actually litigated.

Collateral estoppel first requires that, "the precise issue raised in the present case must

have been raised and actually litigated in the prior proceeding."22 The Commission previously

determined the extent of the interests that the Saginaw Chippewas received under the 1855 and

1864 Saginaw treaties and held they received no interest in lands disposed of by the United

States before the 1855 Saginaw Treaty. In Docket No. 13-H, the first claim that the Commission

addressed was the Tribe’s argument that the number of acres that the United States withdrew

from sale at Isabella for its benefit in the 1864 Saginaw Treaty was unconscionable consideration

for their relinquishment of lands at Saginaw Bay.23 In ruling that the Tribe received adequate

compensation for its Saginaw Bay lands, the Commission made factual determinations on the

issue of whether the United States owed the Tribe compensation for:

20 Hammer v INS, 195 F.3d 836, 840 (6th Cir, 1999) (citation omitted), cert. den., 528 U.S. 1191 (2000). 21 United States v Cinemark USA, Inc., 348 F.3d 569, 583 (6th Cir, 2003) cert. den., 542 U.S. 937 (2004). 22 United States v Cinemark USA, 348 F.3d, at 583. 23 Saginaw Chippewa Indian Tribe v United States, Docket No 13-H, 2 Ind. Cl. Comm. 380, 390-399 (1953)(attachment 1).

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Lands within the six townships described in the treaty of 1855, which had been sold by defendant prior to the treaty. It is difficult to find any basis for [compensation] because by the treaty of 1855, it was only the unsold public lands in the six townships that were withdrawn from sale for their benefit and, according to the evidence; they received 98,051.13 acres of them.24

Thus, the Commission defined the parameters of the interests that the Tribe received under both

treaties, holding that, "what the Saginaw got for their relinquishment of the Saginaw reservation

by the treaty of October 18, 1864, were: (a) 'the exclusive use, ownership, and occupancy of all

of the unsold lands' in Isabella Reservation, (Article 2), including the 64,519.33 acres of

unselected lands," among other things.25 Similarly, in Docket No. 13-I, the Commission

addressed the Tribe's claim that the consideration it received under the 1855 Saginaw Treaty for

release of its claims against the government under the 1837 treaty was unconscionable. In

determining that the 1855 treaty adequately compensated the Tribe, the Commission defined the

parameters of the interests the 1855 and 1864 treaties gave the Tribe as, "individual allotments

and patents to land aggregating more than 98,000 acres," as well as monetary compensation.26

Approximately 40,188.87 acres of land27 in the six townships at Isabella had been sold or

otherwise by disposed of by the United States and therefore were not part of the Tribe's treaty

interest.

24 Saginaw Chippewa Indian Tribe v United States, Docket No 13-H, 3 Ind. Cl. Comm. 1, 9 (1954)(attachment 2)(emphasis in original). 25 Saginaw Chippewa Indian Tribe v United States, Docket No 13-H, 3 Ind. Cl. Comm. 1, at 2-3 (attachment 2)(at the time of the 1864 treaty, 64,519.33 acres of land remained unselected at Isabella out of the original 98,051.13 acres withdrawn under the 1855 treaty). 26 Saginaw Chippewa Indian Tribe v United States, Docket No 13-I, 2 Ind. Cl. Comm. 404, 411 (1953)(attachment 3). 27 The entire six-township treaty area consists of an estimated 138,240 acres, at 640 acres per section multiplied by 36 sections per township. The estimate of 40,188.87 acres sold or otherwise disposed of is the difference between the total 138,240 acres, and the 98,051.13 acres that the Indian Claims Commission determined that the Tribe received an interest in.

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B. Issue was necessary to the outcome of the prior proceeding.

The second element of collateral estoppel requires that "determination of the issue must

have been necessary to the outcome of the prior proceeding."28 In Docket No. 13-H, the

Commission defined the parameters of the interests that the Tribe received under the 1855 and

1864 treaties so it could determine whether the consideration that the United States gave the

Tribe in return for their lands at Saginaw Bay was unconscionable.29 The Commission could not

have made a decision on whether the Saginaw Chippewa were adequately compensated for their

lands without determining exactly what consideration they received in return. The Commission's

determination of the interest that the Tribe received under the treaties was therefore necessary to

the outcome of the Commission's decision.

C. Prior proceeding resulted in a final judgment on the merits.

The third element of collateral estoppel requires that "the prior proceeding must have

resulted in a final judgment on the merits."30 Commission decisions are final judgments

because, "'When the report of the Commission determining any claimant to be entitled to recover

has been filed with Congress, such report shall have the effect of a final judgment of the Court of

Claims. . . .'"31 Court of Claims decisions are binding on all parties to the action, in "any claim

suit, or demand against the United States arising out of the matters involved in the c

controversy."

,

ase or

32 Docket Nos. 13-H and 13-I were final judgments on the merits.

28 United States v Cinemark USA, 348 F.3d, at 583. 29 Saginaw Chippewa Indian Tribe v United States, Docket No 13-H, 3 Ind. Cl. Comm., at 3 (attachment 2). 30 United States v Cinemark USA, 348 F.3d, at 583. 31 United States v Dann, 470 U.S. 39, 45 (1985), quoting 25 U.S.C. § 70u(a) (1976 ed)(repealed 1978). 32 28 U.S.C. § 2519.

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Case law confirms that Commission decisions are judgments on the merits.33 The United

States Supreme Court held in United States v Dann that the "chief purpose of the [Act was] to

dispose of the Indian claims problem with finality."34

The two Circuits of the United States Court of Appeals to have considered the issue have

ruled, therefore, that the Commission decisions have preclusive effect. The Eighth Circuit

stated:

Under the doctrine of collateral estoppel, the 1974 Indian Claims Commission decision . . . as affirmed by the Court of Claims . . . and the Supreme Court . . . bars the Oglala Sioux from relitigating whether the Act of 1877 extinguished their right to the Black Hills.35

In Western Shoshone Nat’l Council v Molini,36 the Ninth Circuit held that the statutory bar in

Section 70u(a) of the Indian Claims Commission Act37 precluded tribal litigants from

relitigating their ICCA lawsuit for hunting and fishing rights against the state of Nevada as well

as the United States.38 The Western Shoshone Court stated, "We did not suggest that the

Commission's determination of title applied only in actions against the United States."39

33 Oglala Sioux Tribe v Homestake Mining Co (Oglala II), 722 F.2d 1407, 1413-1414 (8th Cir. 1984); cited with approval in Navajo Tribe v New Mexico, 809 F.2d 1455, 1464 (10th Cir. 1987). See also Havasupai Tribe v United States, 752 F. Supp 1471, 1481 (D-Ariz. 1990), aff'd sub nom, Havasupai Tribe v Robertson, 943 F.2d 32(9th Cir. 1991), cert. den. sub nom, Havasupai Tribe v United States, 503 U.S. 959 (1992) (stating that Indian Claims Commission judgments can have preclusive effects). 34 Dann, 470 U.S., at 45, quoting H.R. Rep. No. 1466, 79th Cong., 1st Sess., 10 (1945). 35 Oglala II, 722 F.2d at 1413-1414 (8th Cir. 1984) (citations omitted). 36 Western Shoshone Nat’l Council v Molini, 951 F.2d 200 (9th Cir., 1991), cert. den., 506 U.S. 822 (1992). 37 25 U.S.C.S. § 70u (1976 ed.)(repealed 1978). 38 Western Shoshone Nat’l Council v Molini, 951 F.2d 200, 202 (9th Cir., 1991). 39 Western Shoshone, 951 F.2d, at 202 (9th Cir., 1991), citing United States v Dann (Dann III), 873 F.2d 1189, 1195 (9th Cir., 1989). See also, United States v Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502, 1509 (9th Cir. 1991), cert. den., Washington Dep't of Natural Resources v United States, 502 U.S. 956 (1992) (holding an Indian Tribe precluded by an Indian Claims Commission ruling).

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The Indian Claims Commission's decisions are final decisions on the merits.

D. Party to be estopped had full and fair opportunity to litigate the issue.

The fourth element of collateral estoppel requires that, “the party against whom estoppel

is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding."40

The Supreme Court has expressly adopted this requirement in order to observe due process:

The [appellate] court cited the general view of courts and commentators that "among the most critical guarantees of fairness in applying collateral estoppel is the guarantee that the party sought to be estopped had not only a full and fair opportunity but an adequate incentive to litigate ‘to the hilt’ the issues in question."41 The plaintiffs in this lawsuit, the Tribe and the United States, were adversaries in prior

litigation before the Commission in 1953 and 1954. The record of Dockets No. 13-H and 13-I

before the Commission shows that both the Saginaw Tribe and the United States vigorously

litigated the issues, presented hundreds of exhibits, and engaged in an exhaustive investigation of

the facts surrounding the lands at issue in the 1855 and 1864 Saginaw Treaties. There are no

allegations on the record of inadequate due process in Dockets No. 13-H and 13-I before the

Commission by the Tribe or the United States. The parties to be estopped had a full and fair

opportunity to litigate the issue.

E. State Courts have held that individual Saginaw Chippewa are collaterally estopped from relitigating whether unsold lands were part of the Isabella Reservation.

In Moses v Dept of Corrections,42 the Michigan Court of Appeals upheld state court

jurisdiction over a member of the Tribe who committed a crime on a parcel of land within the

40 United States v Cinemark USA, 348 F.3d, at 583. 41 Haring v Prosise, 462 U.S. 306, 311 (1983); see, e.g., Hammer, 853 F.3d, at 842 (observation of due process satisfies the “full and fair opportunity” requirement of collateral estoppel). 42 Moses v Dept of Corrections, 274 Mich. App. 481 (2007).

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six-township treaty area that had been patented to the State of Michigan under the Swamp Lands

Act. In holding that such lands are not Indian country, the Court relied on Oglala II and Western

Shoshone to give preclusive effect to the Commission’s findings of fact and allow actions against

a tribal defendant by the State of Michigan.43 The Court also relied on its previous ruling in

People v Bennett, in which it examined the plain language of the 1864 Saginaw Treaty and

concluded that the phrase "unsold lands" meant that lands sold before the date of that treaty were

under state court jurisdiction.44 In Moses, the Court opined that:

Although following Bennett might cause the "checkerboard" of jurisdiction disapproved of in Keweenaw Bay Indian Community and Seymour, we find it unreasonable to treat land that was never intended to be part of the Isabella Indian Reservation as reservation land solely to achieve a well-defined boundary.45 F. The United States can be collaterally estopped defensively.

In United States v Mendoza,46 the United States Supreme Court held that "nonmutual

offensive collateral estoppel simply does not apply against the Government in such a way as to

preclude relitigation of issues such as those involved in this case."47 On the same day the

Supreme Court issued Mendoza, it issued United States v Stauffer Chemical Co.,48 in which it

held that "the doctrine of mutual defensive collateral estoppel is applicable against the

43 Moses, 274 Mich. App., at 502-504. 44 People v Bennett, 195 Mich. App. 455, 458 (1992). 45 Moses, 274 Mich. App., at 501 (citations omitted). 46 United States v Mendoza, 464 U.S. 154 (1984). 47 United States v Mendoza, 464 U.S., at 162. The Sixth Circuit has described the holding inaccurately as "the Supreme Court has held that non-mutual issue preclusion is generally not available against the United States." Chambers v Ohio Dep't of Human Servs., 145 F.3d 793, 801, n. 14 (6th Cir. 1998). 48 United States v Stauffer Chemical Co., 464 U.S. 165 (1984).

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Government."49 This case involves a different issue: Whether the non-mutual defensive

collateral estoppel50 of a fact applies against the United States. It should.

Non-mutual defensive collateral should apply against the United States because the

policy reasons for not applying non-mutual offensive collateral estoppel do not apply to non-

mutual defensive collateral estoppel of a fact. It will not "substantially thwart the development

of important questions of law by freezing the first final decision rendered on a particular legal

issue."51 The status of sold lands is a fact. The United States should not be allowed to argue

different facts in different courts. Estopping the United States from relitigating the status of the

sold lands will prevent contradictory court decisions.

Non-mutual defensive collateral estoppel should apply to the United States.

G. Conclusion.

The sold lands are not part of the Isabella reservation, and plaintiffs are precluded from

relitigating the issue under the doctrine of collateral estoppel. There is no genuine issue of

material fact about the Indian Claims Commission holdings. Summary judgment is, therefore,

appropriate as a matter of law.

III. Interpretation of clear language in an American Indian Treaty controls over purported Indian understanding. Clear language of the 1855 Saginaw Treaty excludes sold public lands from the alleged Isabella reservation. The alleged Isabella reservation does not contain sold public lands.

Clear language in an American Indian Treaty controls interpretation of the Treaty.

Article 1 of the 1855 Saginaw Treaty states that "The United States will withdraw from sale, for

the benefit of said Indians, as herein provided, all the unsold public lands within the State of

49 United States v Stauffer Chemical Co., 464 U.S., at 169. 50 "Defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against the same or a different party." United States v Mendoza, 464 U.S., at 158, n. 4. 51 United States v Mendoza, 464 U.S., at 160.

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Michigan embraced in the following descriptions…." This clear language limits the alleged

Isabella reservation to the "unsold public lands."

The United States Supreme Court has held that Indian treaties are to be interpreted

according the Indian treaty canons of construction. First, Indian treaties are to be interpreted "to

give effect to the terms as the Indians themselves would have understood them."52 Second, "any

ambiguities are to be resolved in their [the Indians'] favor.53 Third, "Indian treaties are to be

interpreted liberally in favor of the Indians."54

These canons of construction do not mean, however, that the clear language of a treaty

can be ignored. In Choctaw Nation of Indians v United States,55 the United States Supreme

Court considered the meaning of a 1902 agreement with the Choctaw Nation regarding

compensation for lands allotted to freedmen. In reversing the decision of the Court of Claims

that liberally construed the agreement, the Choctaw Nation Court stated:

Especially is this true in interpreting treaties and agreements with the Indians; they are to be construed, so far as possible, in the sense in which the Indians understood them, and "in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people." But even Indian treaties cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.56

More recently, the United States Supreme Court has reaffirmed the principle that the

Indian canons of construction do not have control over clear language in treaties or statutes.

First, in DeCoteau v District County Court for Tenth Judicial Dist.,57 the Supreme Court

52 Minnesota v Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999). 53 Minnesota, 526 U.S., at 200. 54 Minnesota, 526 U.S., at 200. 55 Choctaw Nation of Indians v United States, 318 U.S. 423 (1999). 56 Choctaw Nation of Indians, 318 U.S. at 432. 57 DeCoteau v District County Court for Tenth Judicial Dist., 420 U.S. 425 (1975).

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considered an 1889 agreement and 1891 statute with two bands of the Sioux Nation regarding

the extent of their reservation. The DeCoteau Court stated:

With the benefit of hindsight, it may be argued that the tribe and the Government would have been better advised to have carved out a diminished reservation, instead of or in addition to the retained allotments. But we cannot rewrite the 1889 agreement and the 1891 statute. For the courts to reinstate the entire reservation, on the theory that retention of mere allotments was ill-advised, would carry us well beyond the rule by which legal ambiguities are resolved to the benefit of the Indians. We give this rule the broadest possible scope, but it remains at base a canon for construing the complex treaties, statutes, and contracts, which define the status of Indian tribes. A canon of construction is not a license to disregard clear expressions of tribal and congressional intent.58

In South Carolina v Catawba Indian Tribe, Inc.,59 the Catawba Indian Tribe contended

that South Carolina had failed to comply with a treaty.60 Interpreting a statute, the Catawba

Court stated that "[t]he canon of construction regarding the resolution of ambiguities in favor of

Indians, however, does not permit reliance on ambiguities that do not exist; nor does it permit

disregard of the clearly expressed intent of Congress."61

In 1998 in South Dakota v Yankton Sioux Tribe,62 the United States Supreme Court

considered whether Congress intended to diminish a reservation by an 1894 Act "ratify[ing] an

agreement for the sale of surplus tribal lands."63 Finding that Congress intended to diminish the

reservation, the Court stated: "The principle according to which ambiguities are resolved to the

benefit of Indian tribes is not, however, 'a license to disregard clear expressions of tribal and

congressional intent.'"64

58 DeCoteau, 420 U.S. at 447 (citations omitted) (emphasis in original). 59 South Carolina v Catawba Indian Tribe, Inc., 476 U.S. 498 (1986). 60 Catawba Indian Tribe, 476 U.S. at 501. 61 Catawba Indian Tribe, 476 U.S. at 506. 62 South Dakota v Yankton Sioux Tribe, 522 U.S. 329, 349 (1998), quoting, DeCoteau v District County Court for Tenth Judicial Dist., 420 U.S. 425, 447 (1975). 63 South Dakota v Yankton Sioux Tribe, 522 U.S. at 333. 64 South Dakota v Yankton Sioux Tribe, 522 U.S. at 349 (citations omitted).

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Article 1 of the 1855 Saginaw Treaty states:

The United States will withdraw from sale, for the benefit of said Indians, as herein provided, all the unsold public lands within the State of Michigan embraced in the following description...65

The clear language of Article 1 states that only "unsold public lands" will be withdrawn. The

"sold" lands were not withdrawn. The sold lands could not be, therefore, part of the alleged

Isabella reservation because they were not withdrawn.

The clear language of Article I of the 1855 Saginaw Treaty includes only the "unsold

public lands" in the alleged Isabella reservation. Partial summary judgment is therefore

appropriate because there is no genuine issue of material fact.

IV. American Indian understanding controls understanding of treaties that are unclear. The Saginaw Chippewa understood any alleged reservation created under the 1855 Saginaw Treaty as containing only land not sold or disposed of by the United States prior to the withdrawal of the six townships from the public domain.

As previously discussed,66 the plain language of the 1855 Saginaw Treaty limits any

alleged reservation to unsold land at the time of withdrawal of that land from the public domain

for the purpose of individual Tribal members receiving allotments. Assuming for argument's

sake only that the plain language of the 1855 Saginaw Treaty does not resolve the issue, then

evidence of the Saginaw Chippewa understanding of the 1855 Saginaw Treaty and the 1864

Treaty establish beyond debate that the Saginaw Chippewa understood those two treaties as not

including sold or otherwise disposed of lands at the time the six townships were withdrawn from

the public domain.

In Oregon Department of Fish and Wildlife v Klamath Indian Tribe,67 the United States

Supreme Court considered how to interpret language in an agreement and found that

65 1855 Saginaw Treaty, art. 1 (emphasis in original). 66 See above, section III. 67 Oregon Department of Fish and Wildlife v Klamath Indian Tribe, 473 U.S. 753 (1985).

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interpretations contrary to the plain language and the historical context cannot survive. The

Oregon Court considered whether tribal members had a right to hunt and fish outside of the

reservation boundaries established in 1901.68 Finding that the right did not survive, the Oregon

Court stated:

Thus, even though "legal ambiguities are resolved to the benefit of the Indians," courts cannot ignore plain language that, viewed in historical context and given a "fair appraisal," clearly runs counter to a tribe's later claims. Careful examination of the entire record in this case leaves us with the firm conviction that the exclusive right to hunt, fish, and gather roots, berries, and seeds on the lands reserved to the Klamath Tribe by the 1864 Treaty was not intended to survive as a special right to be free of state regulation in the ceded lands that were outside the reservation after the 1901 Agreement. The judgment of the Court of Appeals is therefore reversed.69

The language of the 1855 Saginaw Treaty states "[t]he United States will withdraw from

sale, for the benefit of said Indians, as herein provided, all the unsold public lands" in six

townships in Isabella County and two townships on the north side of Saginaw Bay.70 As

discussed above,71 a "fair appraisal" of this plain language includes only the "unsold public

lands" in the alleged Isabella reservation.

Words and actions of the Saginaw Chippewa demonstrate that they understood that lands

sold by or disposed of by the United States prior to the withdrawal of the six townships from the

public domain were not part of the alleged Isabella reservation. In selecting the two townships

on the north side of Saginaw Bay, the Saginaw Chippewa ran into difficulties because there was

not enough land from which to select allotments.72 The Saginaw Chippewa sent a petition to the

68 Oregon Department of Fish and Wildlife, 473 U.S. at 764. 69 Oregon Department of Fish and Wildlife, 473 U.S. at 774 (citations omitted). 70 1855 Saginaw Treaty, art. 1 (emphasis in original). 71 See Section III above. 72 Anthony G. Gulig, An Historical Analysis of the Saginaw, Black River and Swan Creek Chippewa Treaties of 1855 and 1864, 51 (An Historical Analysis) (previously provided to the Court as a hyperlinked document pursuant to court order).

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United States stating that there was not enough land from which to select allotments because "the

greatest proportion of them are selected by the State as Swamp lands."73 The Swamp Land Act

of 1850,74 "made a grant in praesenti; in other words, the title then passed to all lands which at

that date were swamp lands, and the only matters thereafter to be considered were those of

identification."75 The petition shows that the Saginaw Chippewa understood that they did not

receive all the land within the townships.

The Saginaw Chippewa selected allotments in the late 1850s and early 1860s. In 1857

and 1861, the Indian agent forwarded a list of those selections to Washington, D.C.76 In both

lists, the Saginaw Chippewa selected no school lands.77 School lands are lands "granted to the

State for the use of schools."78 The Saginaw Chippewas' choice not to select any school lands

demonstrates their understanding that the alleged Isabella reservation did not contain sold lands.

Article II of the 1864 Treaty repeats the formula of "unsold lands" in the 1855 Saginaw

Treaty:

In consideration of the foregoing relinquishments, the United States hereby agree to set apart for the exclusive use, ownership, and occupancy of the said of the said Chippewas of Saginaw, Swan Creek, and Black River, all of the unsold lands within the six townships in Isabella County, reserved to said Indians by the treaty of August 2, 1855, aforesaid....79

The language and historical context of the treaties allow only one reading: The alleged

Isabella reservation did not contain the sold or other disposed of lands as of the date of the

withdrawal of six townships for the purpose of individual Tribal members receiving allotments.

73 Gulig, An Historical Analysis at 51. 74 Act of Congress, September 28, 1850, ch. 84, 9 Stat. 519. 75 Michigan Land & Lumber Co. v Rust, 168 U.S. 589, 591 (1897). 76 Gulig, An Historical Analysis at 60. 77 Gulig, An Historical Analysis at 60. 78 Cooper v Roberts, 59 U.S. 173, 179 (1856). 79 1864 Treaty, art. II, 14 Stat. at 42 (italicized language in original).

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There is no genuine issue of material fact. Partial summary judgment is appropriate as a matter

of law.

V. American Indian Tribes making claims about sovereignty are not considered "persons" under 42 U.S.C. § 1983. The Saginaw Chippewa Tribe is making claims about sovereignty in its complaint under 42 U.S.C. § 1983. The Saginaw Chippewa Tribe is not a "person" under 42 U.S.C. § 1983.

The Saginaw Chippewa Indian Tribe has brought a claim under 42 U.S.C. § 1983. The

Tribe is not, however, a "person" who can bring suit under 42 U.S.C. § 1983 for violation of its

sovereignty. The Tribe seeks to protect only communal sovereign rights to a reservation.

Therefore, the Saginaw Chippewa Indian Tribe's claim under 42 U.S.C. § 1983 should be

dismissed with prejudice.

Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…80 The question is whether an American Indian tribe qualifies to sue under Section 1983. A

tribe is not a "citizen of the United States." Is it an "other person" entitled to sue?

The United States Supreme Court addressed the ability of American Indian tribes to sue

as "persons" under 42 U.S.C. § 1983 in Inyo County v Paiute-Shoshone Indians.81 In Inyo

County, an American Indian tribe and its tribal gaming company asserted that sovereign

80 42 U.S.C. 1983. 81 Inyo County v Paiute-Shoshone Indians, 538 U.S. 701 (2003).

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immunity prevented a California county's district attorney from seizing employment records of

the company.82 The tribe sought, among other things, compensatory damages under 42 U.S.C.

§ 1983.83

The Inyo County Court stated that "[s]ection 1983 was designed to secure private rights

against government encroachment, not to advance a sovereign's prerogative to withhold evidence

relevant to a criminal investigation."84 Finding that "[i]t is only by virtue of the Tribe's asserted

'sovereign' status that it claims immunity from the County's processes"85 and not by any alleged

violation of the Fourth Amendment,86 the Court "[h]eld that the Tribe may not sue under § 1983

to vindicate the sovereign right it here claims."87

In Keweenaw Bay Indian Community v Rising,88 the Sixth Circuit considered Inyo

County89 and interpreted it limitedly. First it stated that:

There are at least two plausible ways to interpret the Court's Inyo County decision. First, it could be that a tribe is not a "person" within the meaning of § 1983 whenever it sues to vindicate rights that are rooted in its status as a sovereign, or have some connection to its sovereignty. Second, it could be that a tribe is not a "person" only when it sues to vindicate its sovereign immunity specifically, as in Inyo County.90 The Keweenaw Bay Court then reversed the District Court below because it had adopted

the first theory.91 The Sixth Circuit:

remand[ed] this case to the District Court to determine whether the Community was entitled to the federal funds (a) only as a result of its sovereignty, or (b)

82 Inyo County, 538 U.S., at 704. 83 Inyo County, 538 U.S., at 706. 84 Inyo County, 538 U.S., at 712. 85 Inyo County, 538 U.S., at 711. 86 Inyo County, 538 U.S., at 711. 87 Inyo County, 538 U.S., at 712. 88 Keweenaw Bay Indian Community v Rising, 569 F.3d 589 (6th Cir. 2009). 89 Keweenaw Bay Indian Community, 569 F.3d at 595-96. 90 Keweenaw Bay Indian Community, 569 F.3d at 596 (footnote omitted). 91 Keweenaw Bay Indian Community, 569 F.3d at 595-596.

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simply because it provides certain social services. If it is the latter, then Community's § 1983 suit would not be in any way dependent on its status as a sovereign, and it should be considered a "person" within the meaning of that statute, so long as other private, non sovereign entities could likewise sue under § 1983.92

The Saginaw Chippewa Indian Tribe seeks injunctive relief under 42 U.S.C. § 1983 to

assert sovereignty over an alleged treaty-based reservation. This is not a right belonging to an

individual tribal member, and it is not like a private action to protect civil rights under the

Constitution or laws. Therefore, the reasoning of Keweenaw Bay does not apply to this case.

Rather this case is similar to Skokomish Indian Tribe v United States.93 In Skokomish, the

Skokomish Indian Tribe sued for damages to its treaty reserved fishing rights.94 The Skokomish

Court stated:

The Tribe here is not suing as an aggrieved purchaser, or in any other capacity resembling a 'private person.' Rather, the Tribe is attempting to assert communal fishing rights reserved to it, as a sovereign, by a treaty it entered into with the United States. Recognizing that 'section 1983 was designed to secure private rights against government encroachment,' as well as the 'longstanding interpretive presumption that 'person' does not include the sovereign,' we conclude that the Tribe may not assert its treaty-based fishing rights under section 1983.95

The Tribe asserts only communal, sovereign rights to a reservation. Under Inyo and

Keweenaw Bay Indian Community, the Tribe has no 42 U.S.C. § 1983 action.

92 Keweenaw Bay Indian Community, 569 F.3d at 596. 93 Skokomish Indian Tribe v United States, 401 F.3d 979 (2005). 94 Skokomish Indian Tribe, 401 F.3d, at 987. 95 Skokomish, 401 F.3d, at 987 (citations omitted & brackets in original).

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CONCLUSION

Assuming for argument's sake that the 1855 Saginaw Treaty or the 1864 Treaty

established the alleged Isabella reservation, the reservation does not contain the land sold or

disposed of before the unsold land was withdrawn from the public domain for purpose of the

individual Tribal members receiving allotments. The Indian Claims Commission ruled so, and

the Tribe and the United States are collaterally estopped from challenging the ruling. The plain

language of the 1855 Saginaw Treaty and the 1864 Treaty expressly includes only the "unsold

public lands" in the alleged Isabella reservation. The Saginaw Chippewa understanding of the

two treaties as demonstrated in their own words and actions was that the alleged Isabella

reservation did not include lands sold or disposed of before the land was withdrawn from the

public domain for purpose of the individual tribal members receiving allotments.

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The Tribe also asserts a 42 U.S.C. § 1983 claim. The Tribe is not a "person" under the

claim because it asserts only sovereign rights.

Summary Judgment is appropriate.

Respectfully submitted, Michael A. Cox Attorney General

/s/ Todd B. Adams Todd B. Adams (P36819)

Assistant Attorney General Counsel for State Defendants Environment, Natural Resources,

and Agriculture Division P.O. Box 30755 Lansing, MI 48909 517/373-7540 [email protected]

Loretta S. Crum (P68297) Special Assistant Attorney General Counsel for State Defendants /s/Larry J. Burdick Larry J. Burdick (P31930) Prosecuting Attorney for Isabella County 200 N. Main St. Mt. Pleasant, MI 48858 (989) 772-0911 ext. 311 [email protected]

LYNCH, GALLAGHER, LYNCH, MARTINEAU & HACKETT, P.L.L.C. /s/ Mary Ann J. O’Neil Mary Ann J. O’Neil (P49063) Counsel for City of Mt. Pleasant 555 North Main, P.O. Box 446

Mt. Pleasant, Michigan 48804-0446 (989) 773-9961

Dated: March 5, 2010 [email protected]

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27

PROOF OF SERVICE

On March 5, 2010, I directed my secretary, Robbin Clickner, to electronically file the following document with the Clerk of the Court, U.S. District Court, Eastern District, using the ECF system, which will send notification of such filing to all counsel of record.

DEFENDANTS' BRIEF IN SUPPORT OF THEIR MOTION FOR

PARTIAL SUMMARY JUDGMENT

/s/ Todd B. Adams Todd B. Adams s:cases/2005/saginaw chips(boundary)/def brief support partial judgment.doc lf/Saginaw Chippewa(boundary)/def brief support partial judgment


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